Make way for CopyKats! KitKat loses legal battle
KITKAT could soon face competition from copycats after losing a landmark ruling.
European judges decided yesterday that makers Nestle do not have the right to trademark the shape of the chocolate wafer’s four-finger bars.
Nestle had hoped to end a long-running battle with its rivals by protecting the distinctive design. But the European Court of Justice ruled that the product’s shape was not well enough recognised across the EU.
It could pave the way for supermarkets to sell ownbrand imitations of the snack, and marks a major blow in Nestle’s 12-year legal fight with rival Cadbury.
KitKats were awarded protected status by the EU’s trademark office in 2006 after Nestle argued that the ‘iconic’ design had been consistent since the original bar, then called Chocolate Crisp, was first sold by Rowntree in 1935. However, this was annulled after legal action by Cadbury’s US owner Mondelez in 2016, leading to Nestle’s appeal.
To retain its trademark, Nestle needed to show that its product was sufficiently famous across the EU’s 28 member states.
The ECJ found that KitKats were well recognised in ten EU countries but not well known enough in Belgium, Ireland, Greece or Portugal.
Nestle’s costly battle has been undermined by a similar product, Kvikk Lunsj – pronounced ‘quick lunch’ – which is made in Norway and has been sold in four-finger bars since 1937. Now owned by Mondelez, it is available in the UK. Mondelez also makes Leo, a four-fingered chocolate bar.
The case will now be referred back to the EU Intellectual Property Office, which is expected to remove Nestle’s rights over the shape.
The ECJ ruling means that if companies want a Europewide trademark, they will have to prove their product is distinctive in all EU member states, not just a significant number. Nestle said this sets an impossible standard.
It added that the ruling ‘is not the end of the case’, as the EU’s trademark office will have the final say.
Nestle has not applied for a trademark on its two-finger KitKat, which can be bought only in multipacks.
Cadbury previously lost an attempt to trademark the shade of purple it uses for its Dairy Milk bar – following objections from Nestle.